Braniff v. Jackson Ave.-Gretna Ferry, Inc.

Citation280 F.2d 523
Decision Date08 July 1960
Docket NumberNo. 18137.,18137.
PartiesAnita Laudin BRANIFF, Administratrix of the estate of John Edward Braniff, Deceased and Matthew F. Belin, Administrator of the Estate of James L. Brown, Deceased, Appellants, v. JACKSON AVE.-GRETNA FERRY, INC., Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Felicien Y. Lozes, Thomas J. Taylor, Howard J. Taylor, Taylor & Taylor, New Orleans, La., for appellant Belin.

George B. Matthews, N. B. Barkley, Jr., New Orleans, La., for Jackson Ave.-Gretna Ferry, Inc., Lemle & Kelleher, New Orleans, La., of counsel.

Before RIVES, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

We face again the oft presented question of who is a seaman. By summary judgment the District Court held that neither of the decedents was a seaman. Though the solution is generally a hard one, and here the question is especially close, we disagree and reverse.

One of the difficulties in this field is that in determining relative rights the status of the ambiguous-amphibious maritime worker is arrived at through a process of exclusions, some statutory, some basically constitutional. For example, here we deal with two workers claimed to be seamen and hence the proper subject of death actions under the Jones Act, 46 U.S.C.A. § 688. The Employer counters with the contention that for these water-borne deaths, the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., was the exclusive standard. But that Act Longshoremen's by its own terms excludes the "master or member of a crew of any vessel." 33 U.S.C.A. § 902(3). In many ways the problem is comparable to the one posed when the contest is between state versus Longshoremen Act compensation coverage. Again, the Longshoremen's Act is exclusive, 33 U.S. C.A. § 905, where applicable. The troubled waters occur not in the end result so much as they do in the determination of which law is applicable. For the Longshoremen's Act provides that it shall apply as to injuries sustained upon navigable waters of the United States, but only "if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. * * *" 33 U.S.C.A. § 903. A decision in these cases, then, is seldom reached in terms that the person is not of one specified status (e. g., seaman) because he is another (e. g., Longshoremen's Act) for that is really the result, not the reason why.

These two cases concern the employees, John Edward Braniff and James L. Brown. We discuss primarily that of Braniff since he was the superior to whom Brown was attached. Brown was to be in attendance on Braniff whenever and wherever Braniff went during his duty hours. In an area already crowded with the figuratives of Twilight Zone, the no-man's-land, and the like, it will not hurt to add another. At this juncture at least, Brown was as close as Braniff's shadow, and where Braniff ends in this status seeking, there will be Brown as well.

The Employer owns and operates several ferries in the Port of New Orleans, including the Leo B. Bisso. Braniff at the time of his death was employed, as he had been for many years, as Superintendent in charge of all maintenance, repair and overhaul work for the company. On September 2, 1958, about 9:15 a. m. Braniff, with his helper Brown, were in a work boat made fast to the side of the Employer's ferry Leo B. Bisso. They were engaged in making repairs to the machinery of the ferry while it was actually in operation drifting down the Mississippi River. Through action of those aboard the ferry asserted to have been negligent, the work boat capsized resulting in the drowning of Braniff and Brown.

As Superintendent, Braniff was responsible for all maintenance and repair work to the marine and shore equipment belonging to the company. He was in charge of and directed the use of the "shore gang" to carry out these responsibilities. Members of the shore gang were hired and fired on his direction. The shore gang comprised approximately six persons, a welder, a carpenter and several ordinary laborers. The shore gang took orders directly from Braniff.

Braniff was a master mechanic and consequently orders to him were of a general nature leaving most of Braniff's actual operations to his own discretion. It was the general regular practice for Braniff and the shore gang to report at the waterfront each morning. At that time Braniff would ordinarily board each of the ferries to ascertain from the captains whether any repair or maintenance work needed to be done. The repair work under the immediate and overall supervision of Braniff was of several kinds, and his personal attendance on any such work was dependent upon the technical nature of the needed repair. Repair and overhaul work was often done on ferries while actually operating, that is without being laid up. At other times, the boats would be withdrawn from service. Occasionally his work took him to the company's shop located at the foot of Walnut Street. Sometimes the repairs required that the equipment be transported to independent repair contractors ashore. If, after the morning inspection made aboard each of the ferries, there were no repairs to be accomplished on any or all of them, Braniff would disperse the gang to complete unfinished work, presumably both ashore and afloat, or send them to other jobs which he wished done. In all of this, Brown was assigned to Braniff as his helper, and he accompanied Braniff wherever Braniff went. His work was to remove or lift any heavy equipment or parts which might be necessary during a repair operation and generally to assist Braniff in his functions.

Of course, Braniff was not assigned to, nor did he stand a watch, aboard any one of the ferries. He, as well as Brown and other members of the shore gang lived ashore and their ordinary hours of work were from 8:00 a. m. to 4:00-4:30 p. m. each day. Braniff was, however, on 24-hour notice in case of emergencies, and it was understood by the gang that in an emergency, they would also be subject to call to assist Braniff.

In addition to the removal, repair or overhauling and reinstallation of major component pieces of equipment making up the engineering plants of the ferry boats performed while the boats were out of service, Braniff was also responsible for the weekly "washing out" of the boilers, and the raising and lowering of the vehicular runways due to erratic rise and fall of the river. His presence aboard the ferries was essential when the latter operation was performed to assure that it was safely done. In addition he was responsible for maintenance and repair of the ferry houses and landings on shore and was in charge of the machine shop on Walnut Street where some minor repairs to component pieces of equipment were accomplished and some fabrication work was carried on.

Holding that on the uncontroverted facts no reasonable minds could disagree that Braniff and Brown were not members of a crew of a vessel, the District Court granted summary judgment for the Employer.

Of course, in testing summary judgment, we must determine whether there was no genuine issue as to any material fact. F.R.Civ.P. 56(c), 28 U.S.C.A. As a procedural matter, the controversy may be made to appear by controverting affidavits of which there were none here. Cunningham v. Securities Investment Co., 5 Cir., 1960, 278 F.2d 600. Or it may arise from the face of the moving papers showing that certain "facts" are variable or uncertain or indefinite or that from established or uncontradicted physical or similar facts different inferences may be drawn. We are confronted with the latter.

After the thorough and pains-taking discussion for this Court in Offshore Co. v. Robison, 5 Cir., 1959, 266 F.2d 769, 1959 A.M.C. 2049, of all of the significant cases by which the concept of seaman has been broadened as a question of fact for the trier, little purpose would be served in retracing these steps to pick out and discuss specific factors thought relevant or decisive for our present case. We think it sufficient that we merely repeat what was there set forth as this Court's position stated affirmatively. "There is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips." 266 F.2d 769, at page 779. And of equal importance to our present problem was this lesson from the developmental process of case-by-case adjudication which we there regarded as more significant than the catchphrases frequently used. "Attempts to fix unvarying meanings have a firm legal significance to such terms as `seamen', `vessel', `member of a crew' must come to grief on the facts. These terms have such a wide range of meaning under the Jones Act as interpreted in the courts, that, except in rare cases, only a jury or trier of facts can determine their application in the circumstances of a particular case. Even where the facts are largely undisputed, the question at issue is not solely a question of law when, because of conflicting inferences that may lead to different conclusions among reasonable men, a trial judge cannot state an unvarying rule of law that fits the facts. * * *" 266 F.2d 769, at pages 779-780.

With this approach we think there are a number of conflicting inferences which reasonable men could draw from the facts set forth in the affidavits. And this is so whether such "facts" are regarded...

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